The Queensland Industrial Relations Commission (QIRC) has expressed ‘doubts’ as to whether a ‘substantial connection with Queensland test’ is required for work outside of Queensland to form part of an employee’s ‘continuous service’ when assessing their entitlement to long service leave under the Industrial Relations Act 2016 (Qld) (IR Act).
In Mears v Vector Aerospace Australia Pty Ltd  QIRC 348 (Mears), a Full Bench held that an employee’s four years’ prior service in Canada and England formed part of his 10 years of continuous service giving rise to an entitlement to long service leave.
The Full Bench considered the jurisprudence which had followed the 1965 Federal Hotels decision, where it was held that to avoid multiple claims in different states, there should be a real connection to one state, to identify where the claim could be made. Following that case, previous QIRC decisions had assumed the relevant provisions of the IR Act (and its predecessors) incorporated a ‘substantial connection with Queensland’ test [at 17].
Noting that the appeal of Federal Hotels1 did not suggest any requirement for substantial connection of the service taken as a whole to the state of Queensland or that service outside of Queensland have some substantial connection to Queensland, the Full Bench expressed doubts as to whether any substantial connection test is imported into s93(b).
While other states had adopted like tests, the relevant provisions were silent as to whether service outside the state counts towards the calculation. By contrast, in Queensland, s93(b) of the IR Act expressly provides that both service within the state and outside the state counts in the calculation. All that is necessary is that there is continuity of employment by the employer of the employee.
The Full Bench conceded though that, without a ‘substantial connection’ requirement, some odd results may follow. For example, where an employee performs virtually all of their service outside Queensland, an employer may be responsible for long service leave under the IR Act for a very short period of service in Queensland.
Ultimately, the matter was not required to be resolved. In the factual circumstances in Mears, the employee had been employed in Queensland for at least half of the 10-year period and so if any ‘substantial connection’ test applied, it was satisfied.
The Full Bench was unmoved by the employer’s constitutional submission that if service overseas counted towards long service leave liability crystallising in Queensland, this would fix the working terms and conditions of employees beyond the state, thereby acting beyond the plenary power of the Queensland Parliament. At , it observed that:
“Section 93(b) does not purport to impose terms and conditions of employment beyond Queensland borders. What it does is identify a fact, which may occur interstate or overseas, which then visits liability upon an employer who, at the relevant time, is employing an employee in Queensland.”
As the relevant provision (s93(b)) operated in relation to employers carrying on business in Queensland and with relation to employees in Queensland and, the long service leave provisions impose a liability upon an employer in relation to its employment of an employee employed in Queensland, the Full Bench concluded that the provisions were within the power of the Queensland Parliament to make (at ).
In light of this decision, the ‘substantial connection with Queensland test’ may not go undisturbed for much longer. Employees should not assume that just because much of their service with an employer was performed overseas that it will not be relevant to the calculation of their long service leave entitlements.
Patrick Turner is a Senior Associate at Maurice Blackburn and a member of the Queensland Law Society Occupational Discipline Law Committee.
1 Application for interpretation of s17 and 19 of the Industrial Conciliation and Arbitration Act 1961-1964 (1965) 58 QGIG 530 and on appeal to the Industrial Court of Queensland (1965) QGIG 531.